Live Testimony in Family Law Proceedings

In family law cases, parties commonly bring “requests for order” when they want to ask the court to make certain orders, e.g., for one party to pay support to the other, to set a visitation schedule, or to appoint an expert. In bringing these requests for order, parties must present evidence justifying their requests. Often, in family court, this evidence comes in the form of declarations—sworn testimony in a written form submitted to the court.

Declarations offer many benefits, mainly in the realm of efficiency. A written declaration takes far less court time than an attorney questioning a witness on the stand at a court hearing. However, declarations are inherently less reliable, credible, and probative; they constitute hearsay. Unlike a witness on the stand, a declaration does not allow for cross-examination.

Thus, live testimony is also generally permitted. California Family Code section 217, subdivision (a), provides that at a hearing on any request for order, absent a stipulation of the parties or a finding of good cause otherwise, the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

However, given the benefits of live testimony over declaration testimony, a recent court decision made clear the relationship between Family Code section 217 and the hearsay rule. In Marriage of Swain[i], the Court found Family Code “section 217, when considered in light of its legislative history and the case law leading to its adoption, precludes reliance on inadmissible hearsay over a party’s objection (subject to the good cause provision of section 217, subdivision (b)), at least where the party has no opportunity for cross-examination.” The Court concluded that in that case, the trial court had erred in considering a declaration of one party over the other party’s objection, when the declarant was not present at the hearing to be cross-examined.

The Court declined to answer the general question whether Family Code section 217 makes written declarations submitted in connection with family law requests for order subject to the hearsay rule in every case. It did conclude, however, that “at a minimum, the hearsay exception in Code of Civil Procedure section 2009[ii] does not apply to a motion to modify a family law judgment where…the opposing party seeks to exclude the declaration on the ground that he or she is unable to cross-examine the declarant.”

The Court explained that in the situation at hand, the opposing party’s objection not only sought to exclude hearsay evidence, but also amounted to an assertion of the party’s right under Family Code section 217 to “live, competent testimony that is relevant and within the scope of the hearing.” The opposing party’s live testimony was necessary for cross-examination—the lack of an opportunity to cross-examine the declarant deprives an opposing party of important evidence concerning the credibility of the declarant and the reliability of testimony in the declaration.

This means that while parties may continue to present declarations in support of their requests for order, parties should always keep in mind that absent a stipulation (agreement) with the other party as to the admissibility of declaration testimony, live testimony may be required so that the other party will have the opportunity to cross-examine the witnesses. Parties unsure of the requirements of presenting witness testimony to the court in support of their specific requests should discuss such issues with an attorney.

[i] (2018) 21 Cal.App.5th 830.

[ii] “An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute.”